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February 5, 2008 Reclaiming Justice March 2013 IDC 13/124 03/22/2013 The Sixth Amendment Center seeks to ensure that no person faces potential time in jail without first having the aid of a lawyer with the time, ability and resources to present an effective defense, as required under the United States Constitution. We do so by measuring public defense systems against established standards of justice. When shortcomings are identified, we help states and counties make their courts fair again in ways that promote public safety and fiscal responsibility. Cover photo: Carson City, Main Street (c. 1870). Nevada Historical Society. Copyright © 2013 by the Sixth Amendment Center Sixth Amendment Center PO Box 15556 Boston, MA 02215 Published in the United States of America in 2013 by the Sixth Amendment Center All rights reserved Printed in the United States of America Publication Number: 2013.001 IDC 14/124 03/22/2013 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future March 2013 Prepared for: The Nevada Supreme Court Indigent Defense Commission By: Sixth Amendment Center P.O. Box 15556 Boston, MA 02215 www.sixthamendment.org IDC 15/124 03/22/2013 In response to the Nevada Supreme Court’s concerns about the manner in which poor defendants are provided the right to counsel in criminal and juvenile delinquency cases and the quality of services rendered, the Court created the Indigent Defense Commission (IDC) through administrative or- der ADKT-411, issued on April 26, 2007. The IDC is composed of judges, prosecutors, defense attorneys, county executives and other criminal justice stakeholders and is charged with studying how counties provide services and recommending to the Court appropriate changes. ii Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 16/124 03/22/2013 Preface erious problems exist today in rural every single day of the year, weekends and hol- Nevada when it comes to providing idays included. If your family member or neigh- Sattorneys to poor people who face bor or colleague was accused of a crime, would the potential loss of liberty at the hands of the you want them to have an attorney with no time criminal justice system. The indigent accused to do anything other than simply pass along may sit in jail for several weeks or even months, whatever plea deal the prosecutor has offered? waiting to speak to an attorney while witnesses’ memories fade and investigative leads go cold. Since 2008, numerous Nevada Supreme Court Once the defendant is appointed an attorney, administrative orders have improved the right that individual defendant may be one of several to counsel in the state’s urban centers. This hundred who are all vying at the same time for is most notable in Clark County (Las Vegas), the attention of that single attorney. Worse, the where public defender caseloads are now rea- overburdened attorney will often have financial sonable, the conflict assigned counsel panel is conflicts that pit his ability to put food on his free of undue judicial interference, and attorney family’s dinner table against his ethical duty to contracts do not impose financial incentives for zealously advocate solely in the best interests attorneys to do as little work as possible on a of his client. case. But fixing the “crisis” in rural Nevada has proven to be more difficult. There are a wide In 2007, the Nevada Supreme Court es- variety of reasons for this, including a lack of at- tablished an Indigent Defense Commission torneys to do the work, the geographic expanse (“Commission”) to examine and make recom- of most rural counties, and limited infrastructure mendations regarding the delivery of constitu- to train and evaluate attorneys. Perhaps most tionally required indigent defense services in importantly, though, most rural Nevada counties Nevada. The following year, the Commission’s have insufficient resources to keep pace with Rural Subcommittee went on record that “rural the United States Supreme Court as it contin- counties are in crisis in terms of indigent de- ually clarifies and expands the responsibilities fense,” noting that one county in particular has that attorneys owe to their clients under the an annual public defense attorney caseload of Sixth Amendment. “almost 2,000 per contract lawyer.” Not even the most competent lawyer on earth can effec- In August 2012, Chair of the Commission and tively open, investigate, and dispose of cases then-Chief Justice of the Nevada Supreme at a rate of nearly five and a half cases per day, Court Michael Cherry asked the Sixth Amend- Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future iii IDC 17/124 03/22/2013 ment Center (“6AC”) to suggest a consensus But a funny thing happened on the way to approach toward achieving constitutional- making that argument. In researching the foun- ly required provision of the right to counsel dation of Nevada’s libertarian culture, the 6AC throughout the state, and in the rural counties discovered that the state’s judicial and legisla- specifically. The 6AC originally envisioned tive history is rich with a commitment to equal advocating for the creation of a permanent access to justice for poor people in criminal indigent defense commission to administer right proceedings; a state commitment that far pre- to counsel services in those counties where no dates any federal action on the issue. Indeed, public defender office is required under Nevada as early as 1875 to 1879 Nevada was the very Revised Statutes 260.010. That is, Clark (Las first state in the union to authorize the appoint- Vegas) and Washoe (Reno) counties would ment of attorneys in all criminal matters, includ- be exempt from state oversight by a perma- ing misdemeanors, and the required payment of nent commission, while the remaining counties attorneys for the services rendered. would be relieved of the burden of financing the state’s requirement to provide indigent The father of the right to counsel in Nevada, defendants with effective lawyers in exchange Thomas Wren, epitomizes the rugged individu- for state supervision of local public defense alism that is characteristic of Nevadans. Wren services. And, though our final recommenda- was a self-made man, who rose from abject tions closely align with that projected aim, the poverty as an orphan to eventually serve as reasons why Nevadans should support these the state’s lone U.S. Congressman from 1877 recommendations changed significantly as we to 1879. Interestingly, Wren was a prosecutor conducted our work. from Austin, in Lander County, then Nevada’s second largest city, before he became a state The 6AC started out with the intent to place assemblyman from Eureka. And far from being the right to counsel in its historical libertarian a bleeding heart, Wren argued on the floor of context. The argument goes: the Bill of Rights the Assembly for the expanded use of capital was created to protect the individual from punishment during the same legislative session overreaching by big government. Just as the that he cemented Nevada’s commitment to the Second Amendment guarantees the individu- right to counsel. As Wren demonstrated, being al the right to bear arms to protect liberty and a law-and-order prosecutor does not require is a check against the potential tyranny of big one to resist indigent defense improvements. government, so too does the Sixth Amendment protect an individual’s liberty from overreach- Nevada also has its own Clarence Earl Gideon. ing by the massive machinery of governmental Gideon was the man who challenged a Florida law enforcement. Our hope was that Nevada court’s decision to deny him an attorney. His criminal justice stakeholders and policymakers travails eventually led the United States Su- would view the right to counsel as something preme Court, in March of 1963, to hand down well within Nevada’s own uniquely libertarian the landmark case of Gideon v. Wainwright that worldview and support recommended changes. requires all states to provide competent repre- sentation to poor people facing felony charges iv Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 18/124 03/22/2013 in state courts. In Nevada, that man was Shep- The report also demonstrates that the serious herd L. Wixom. His story, told in the following systemic deficiencies plaguing rural counties, pages, did not result in his freedom (as Gide- detailed in the second part of the report, are on’s story did). However, it did lead the Nevada a relatively recent development (beginning Supreme Court in 1877 to strengthen the right in 1975) and a turning away from Nevada’s to counsel law that Wren had introduced two longstanding history of ensuring equal justice years prior. to people of insufficient means. We hope the recommendations set out in Reclaiming Jus- The first part of our report, Reclaiming Jus- tice contribute to the restoration of Nevada’s tice, details the history of the right to counsel deep-rooted commitment to due process and in Nevada. We believe this story shows that that justice in rural Nevada will – once again – the people of Nevada have always viewed the no longer depend on the amount of money one right to counsel not as a federal mandate to be has in his pocket. resisted, but as a bedrock principle upon which the state was founded. Nevadans should em- brace this history and this view today.
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